Maui County Votes to Settle CWA Suit Pending Before Supreme Court

Last Month, the Maui County Council Voted to Settle County of Maui v. Hawai’i Wildlife Fund, a High-Profile CWA Suit

On September 20, 2019, the Maui County Council voted to settle County of Maui v. Hawai’i Wildlife Fund, a high-profile case involving the scope of the Clean Water Act (CWA). The U.S. Supreme Court is scheduled to consider the case this November.

While the Council voted 5-4 to resolve the case, the litigation may not be over. Several council members, along with Maui County Mayor Mike Victorino, maintain that the county can’t formally dismiss the case without the Mayor’s approval. So far, Victorino has resisted settlement. If the settlement proceeds, Maui County will be required to pursue a National Pollutant Discharge Elimination System permit for the injection wells and invest approximately $2.5 million in wastewater reuse systems.

County of Maui v. Hawai’i Wildlife Fund

As discussed in greater detail in prior articles, County of Maui v. Hawai’i Wildlife Fund revolves around whether the CWA regulates pollution that reaches surface water via groundwater. The federal courts of appeals are deeply divided on the question.

The Ninth Circuit Court of Appeals adopted an expansive interpretation of the CWA’s reach. It held that that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County of Maui was liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater than de minimis levels.

“At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit,” the Ninth Circuit explained. “It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.”

The Ninth Circuit’s decision is at odds with the Sixth Circuit. In Clean Water Act Network v. Tenn. Valley Auth. and Kentucky Waterways All. v. Kentucky Utils. Co., the appeals court declined to impose liability for indirect discharges of pollution to federally protected water via groundwater. That case, which was on the Supreme Court’s docket, also settled.

The Environmental Protection Agency’s (EPA) interpretation of the CWA is also narrow. According to EPA guidance issued in April, discharges of pollutants to groundwater are “categorically excluded” from the CWA’s permitting requirements. “Informed by [public] comments and based on a holistic analysis of the statute, its text, structure, and legislative history, the Agency concludes that the best, if not the only, reading of the CWA is that Congress intentionally chose to exclude all releases of pollutants to groundwaters from the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater,” the EPA wrote.

Another CWA Case for the Supreme Court

Assuming that the Maui County case is settled, the U.S. Supreme Court may agree to take up yet another case involving the CWA. In Kinder Morgan Energy Partners LP v. Upstate Forever, the Fourth Circuit adopted similar reasoning, holding that the discharge of a pollutant that moves through groundwater before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA.  However, it further held that a plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through groundwater.

If the Court agrees to hear Kinder Morgan, the justices will again be in the position to resolve the circuit split over the scope of the CWA. Given the potential ramifications for the regulated community, the attorneys of the Scarinci Hollenbeck Environmental Law Group will continue to closely monitor the cases, and we encourage readers to check back for updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.